Perpetual Trustee Company Limited v Wu

[2024] NSWSC 256

Supreme Court

New South Wales

Medium Neutral Citation:

Perpetual Trustee Company Limited v Wu [2024] NSWSC 256

Hearing dates:

15 March 2024

Date of orders:

15 March 2024

Decision date:

15 March 2024

Jurisdiction:

Common Law

Before:

Davies J

Decision:

The amount of $613,210.68 held in trust account of the Supreme Court of New South Wales be paid to the trust account of the defendant’s solicitors, Lloyd Truman Sadiq, as follows:

Name of Account: Lloyd Truman Sadiq Trust Account

Name of Bank: Commonwealth Bank of Australia

BSB: XXXXX

Account No: XXXX XXXX

Catchwords:

JUDGMENTS AND ORDERS – monies in court – defendant mortgagor seeking payment out of residual funds from sale of defendant’s property – no question of principle

Legislation Cited:

Nil

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Perpetual Trustee Company Limited (Plaintiff)
Jing Wen Wu (Defendant)

Representation:

Counsel:
No appearance - excused (Plaintiff)
S Sadiq (Defendant)

Solicitors:
Dentons Australia Ltd (Plaintiff)
Lloyd Truman Sadiq Solicitors (Defendant)

File Number(s):

2015/56216

Publication restriction:

Nil

Judgment

1. These proceedings commenced in 2015 with the plaintiff seeking possession of land being a residential unit in Pitt Street Sydney. The basis for the claim for possession was default under a mortgage that the defendant had given to the plaintiff. Default judgment was obtained on 3 June 2015. For reasons that are not at all clear, a writ of execution was not issued until 29 November 2021. The writ was executed on 28 January 2022. Subsequently the plaintiff entered into a contract of sale to sell the unit on 7 May 2022. Settlement took place on the 30 June 2022. In all this time the defendant did not appear.

2. When the plaintiff had taken from the proceeds of sale what was owing to it, there was a substantial residual amount left over. Application was then made to this Court to pay that residual amount into court, and on 16 March 2023 Adams J made such an order, giving reasons for doing so.

3. Subsequently a notice of motion was filed by solicitors acting for the defendant on 22 January 2024 seeking that the amount in court be paid out to them. By the time that notice of motion came before me on 2 February 2024 those solicitors had ceased to act. A new solicitor appeared on that day from the present solicitors' firm. The solicitor indicated that it was necessary to obtain evidence establishing the identity of the defendant so that the order which was sought in the notice of motion could be made.

4. Subsequently an amended notice of motion was filed by the new solicitors which was supported by an affidavit of Salina Sadiq sworn 8 March 2023. That affidavit establishes to my satisfaction that the solicitors have properly carried out investigations to establish that the person now claiming the money is the person named as the defendant in the proceedings and, as the owner of the land, is entitled to the moneys which are now in court.

5. Accordingly, I order that the amount of $613,210.68 held in the trust account of the Court is to be paid to the trust account of the defendant's solicitors Lloyd Truman Sadiq, the details of which are contained in the short minutes of order provided to me and which I will sign and date today.

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Decision last updated: 15 March 2024